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Barton v. Jefferson Parish Sch. Bd.

Court of Appeals of Louisiana, Fifth Circuit

May 28, 2015

STEVE BARTON
v.
JEFFERSON PARISH SCHOOL BOARD, CHERYL FARMER, KIPLYN DIAZ-PEREIRA, AND KISHA BUTLER, AS NATURAL TUTRIX OF THE MINOR CHILD, KESHAWN BUTLER

Page 317

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 713-457, DIVISION " C" . HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING.

DOMINICK F. IMPASTATO, III, ATTORNEY AT LAW, New Orleans, Louisiana And STEVEN J. RANDO, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE-2ND APPELLANT.

MICHAEL G. FANNING, ATTORNEY AT LAW, Gretna, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg. MURPHY, J., CONCURS IN PART AND DISSENTS IN PART, WITH REASONS. GRAVOIS, J., CONCURS IN PART AND DISSENTS IN PART, FOR THE REASONS STATED BY MURPHY, J.

OPINION

Page 318

[14-761 La.App. 5 Cir. 2] MARC E. JOHNSON, J.

In this wrongful termination lawsuit, both the employer and the employee appeal the judgment of the trial court, which reinstated the employee to his job as a teacher and awarded him damages. For the following reasons, we affirm in part and amend in part.

FACTS & PROCEDURAL HISTORY

In 2011, Plaintiff, Steve Barton, was initially hired to work part-time as a high school football coach and was subsequently hired as a full-time itinerant physical education (" P.E." ) teacher for the Jefferson Parish Public School System (" JPPSS" ). For the 2011-2012 school year, Mr. Barton was assigned to Geraldine Boudreaux Elementary

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School as a P.E. teacher for pre-K through fourth grade.

[14-761 La.App. 5 Cir. 3] On January 24, 2012, Mr. Barton had his third grade class playing dodgeball when he was involved in an incident with one of his students, KeShawn Butler. It is undisputed that KeShawn either kicked or threw a safety cone that struck Mr. Barton in the head, after which Mr. Barton grabbed KeShawn's shirt and instructed KeShawn to sit down. KeShawn sat down for the remainder of the class period.

Immediately thereafter, KeShawn reported the incident to the principal, Kiplyn Diaz-Pereira, claiming Mr. Barton " [p]ut his hands on me grabed [sic] me hit me in my head cursed me out. [T]alking about me. [C]alling me stuiped [sic]." Ms. Diaz-Pereira further discussed the matter with KeShawn and ascertained that the class was playing dodgeball when the ball became stuck in a tree and Mr. Barton instructed the students to get in their spots. KeShawn stated that as he was running to his spot, he accidentally kicked a cone and it hit Mr. Barton. KeShawn claimed that Mr. Barton had two balls in his hands, which he tried to throw at KeShawn. That afternoon, Mr. Barton was called into Ms. Diaz-Pereira's office and asked to write a statement about the incident. Mr. Barton indicated that KeShawn was throwing cones at others in P.E. class and that he placed his hands on KeShawn's chest to stop him from hitting the other students. The next day, Ms. Diaz-Pereira asked all the students in the class to write down what happened in P.E. class the day before.

Based on her investigation, Ms. Diaz-Pereira believed Mr. Barton had acted inappropriately, and on January 30, 2012, she advised Mr. Barton that he was being suspended without pay, effective January 31, 2012, for impermissible corporal punishment until due process procedures were held. Thereafter, on February 29, 2012, Ms. Diaz-Pereira recommended that Mr. Barton be terminated from his employment with the JPPSS, a recommendation supported by the acting chief human capital officer on March 22, 2012 and the acting superintendent for [14-761 La.App. 5 Cir. 4] JPPSS on May 2, 2012. The Jefferson Parish School Board upheld the recommendations for Mr. Barton's termination on November 5, 2013.

As a result of his termination, Mr. Barton filed the present lawsuit against the Jefferson Parish School Board (" School Board" ) and Kiplyn Diaz-Pereira seeking damages on the basis he was wrongfully terminated.[1] Trial was held on May 7, 2013, during which time the parties offered the testimony of Mr. Barton and Ms. Diaz-Pereira and introduced various exhibits. After taking the matter under advisement, the trial court rendered judgment on May 13, 2014 in favor of Mr. Barton against the School Board and awarded Mr. Barton $57,149 in damages. The trial court found that Ms. Diaz-Pereira was not liable to Mr. Barton and dismissed his claims against her with prejudice. Both Mr. Barton and the School Board appeal this judgment.

ISSUES

In its appeal, the School Board argues the trial court erred in reversing the School Board's decision to terminate Mr. Barton. It maintains the trial court erred in determining the School Board abused its discretion in accepting the principal's version of the incident and finding the

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incident was sufficient to justify Mr. Barton's termination.

In Mr. Barton's appeal, he asserts the trial court erred in only awarding $57,149 in damages. He contends he is owed the full amount of stipulated wages, or $138,000, that he lost from the time of the wrongful termination through the time of trial.

[14-761 La.App. 5 Cir. 5] DISCUSSION

Liability

At trial, the parties stipulated that Mr. Barton was a non-tenured teacher. Accordingly, his termination is governed by La. R.S. 17:442. At the time Mr. Barton was hired and terminated, La. R.S. 17:442[2] provided:

Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city which the teacher is serving his probation. During the probationary term the parish or city school board . . . may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools . . . accompanied by valid reasons therefor.
Any teacher found unsatisfactory by the parish or city school board... at the expiration of the said probationary term, shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification, such probationary teacher shall automatically become a regular and permanent teacher in the employ of the school board of the parish or city...in which he has successfully served his three year probationary term....

Thus, a non-tenured teacher may be discharged as long as there are valid reasons for his discharge. McKenzie v. Webster Parish School Bd., 609 So.2d 1028, 1031 (La.App. 2nd Cir. 1992). The parties in this case disagree as to ...


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